Friday, January 29, 2010

As a piece of documentary film, I cannot recommend this strongly enough, though I found it impossible to watch the last 5 minutes of the film and other short parts were difficult to get through as well. The overall story is a documentary about how the last 5 minutes of the film were shot and it is fascinating.

What I am taking the time to write about, however, is just a few lines from the film. A small Japanese village (Taiji) is the source of pretty much every dolphin at all of the world's very popular sea entertainment facilities. Only a handful of dolphins are sold each year (though because of their quite high two- and five-year mortality rate in captivity, sea entertainment facilities always need a ready supply of entertainment dolphins). In addition to the handful that are captured for sale to the sea entertainment industry, approximately 35,000 dolphins are brutally slaughtered for their meat.

When interviewed, a few Japanese officials had the following to say:

1. You eat cows, we eat dolphins.

2. I have never been shown a valid reason why these creatures (the dolphins) are different from other animals

3. It is a matter of pest control (the dolphins, after all, eat some of the same fish that Japanese fishermen target for harvest and they eat a lot of them).

To me, those lines were some of the most interesting in the film. Not for the reasons the film-makers had intended, however. I am sure the film-makers thought of those lines a "crazy" (they certainly presented them in that light). To me, however, they are all true. They represent the hypocrisy of attempting to label the horrifying slaughter of these caring, intelligent creatures as a moral repugnance all the while chewing on your hamburger.

It is a very fine line saying Creature X is deserving of nothing more than a short life of torture because we savor the taste of its flesh, but Creature Y is "too smart" or "too cute" or "too loving of man" to deserve the same fate, thus we must protect it and become outraged if someone does not share that view.

If you are a person who eats meat, or dairy or eggs, you are effectively surrendering your moral authority to complain about the atrocities in kind others commit. Ultimately these things are all interconnected. A person who has lost empathy and respect for some non-human animals will not be far from losing it for all.

If you do watch The Cove and are horrified by what you see, please give that horror some thought before your next meal.

UPDATE:Doing some additional searching, I found this CNN clip in which O'Berry replies to this exact criticism with "Well you don't torture pigs and cows for 30 hours before you kill them." It is too bad the CNN reporter did not press this point.

As Linda Greenhouse noted, President Obama's criticism of the Supreme Court's Citizen United speech made for an awkward moment and arguably showed why Supreme Court Justices should not attend the State of the Union address. While not quite Joe-Wilson-esque, Justice Alito's shaking of his head in disagreement was itself a mild breach of decorum: If you're going to show up at a political speech by a President who, when a Senator, voted against your confirmation, be prepared to grin and bear--or at least sit stone-faced through--criticism of your recent politics-affecting decision.

Meanwhile, although Justice Alito's head shake is getting a lot of attention, the substantive issue should not be overlooked. And here I do not have in mind the question of what, exactly, the President believes Congress can do to limit corporate influence on politics without once again running afoul of the Supreme Court. That's an important question, but there is a more basic question here: Can President Obama credibly call for change in the role that money plays in politics? His past acts would suggest not.

As I noted in a FindLaw column last fall, the deal that the President struck with the pharmaceutical industry--under which the latter agreed to spend $150 million to advertise the President's health care plan in exchange for capping savings on pharmaceutical expenses at $80 billion--was highly questionable: It showed the President as willing, even eager, to use corporate funds to influence the outcome of public debate. That is exactly the sort of activity that the President criticized the Court for authorizing in its Citizens United decision.

To be sure, it can be said in the President's defense that his deal with Pharma was perfectly legal. If one supports campaign finance reform, one can still do whatever it takes to advance one's policy agenda and to get elected under existing, less-than-ideal, laws. Otherwise, this line of reasoning goes, one ends up unilaterally ceding the field to those who have no such qualms. In this view, legislation limiting the impact of money on politics operates as a solution to a collective action problem. Even when all candidates would rather live in a world with limits on campaign finance, competitive pressure leads them to do whatever the law allows. Thus, a politician who sincerely favors limits on the influence of money in politics may find himself using as much money as possible until those limits are in place.

Whether that argument works in the case of the Obama Pharma deal is open to question. To my knowledge, this sort of deal---in which a target of regulation agrees to pay to advertise for the regulation---was unprecedented. Thus, it is not exactly as though Obama needed to keep up with a political opponent who was striking a different deal. Perhaps the best that can be said is that the White House sought Pharma advertising money to counter what it anticipated would be health insurance money on the other side.

But even if one thinks that the President's street cred on campaign finance was not damaged by the Pharma deal, it's not clear he had much credibility on this issue to begin with. That's because of the President's reneging on his promise to accept public financing, and the limits that go with it, when he was running for office. Obama made the promise when he was running an insurgent campaign. Once it became clear that he could raise substantially more money for the general election than the restrictions would allow him to spend, he changed his story.

Here too, there was at least the fig leaf of a neutral justification: Obama needed to opt out because the Republicans would use their advantage in raising party money, so the restrictions that come with public finance would have unfairly disadvantaged him. That's a poor argument, however, because the Republican advantage was known perfectly well at the time that Obama made the initial promise.

Does this mean that candidate Obama was wrong to reject public funding after promising to accept it? Not necessarily. There were a lot of things Obama wanted to do as President, and breaking the public funding promise may well have been the price of becoming President. Still, it makes him an awkward advocate of campaign finance limits.

Thursday, January 28, 2010

My FindLaw column this week continues my reaction to the Democrats' renewed zeal for fiscal orthodoxy. I have particularly harsh words for President Obama, whose embrace of the Republicans' insane idea to freeze spending during a recession is nothing short of irresponsible.

I go on in that column to offer what I hope is a constructive idea: If we must live in a world where politicians pander to (and thus reinforce) politically contrived fears about deficits, maybe we should revisit how deficits are measured. I suggest that any efforts to create a bipartisan panel to fight deficits should instead be used to create a panel to measure the fiscal deficit in a responsible way. Even though such a panel would surely be populated by the usual suspects who infest Washington, the net result of a semi-public discussion of how to measure deficits would have to be positive. We use the simple-minded cash-flow measure of deficits now. Even alerting the public to the many alternative measures can only be a good thing.

Here, I would like to return to the merits of the arguments for deficit reduction. In my Dorf on Law post last Thursday, I discussed the political pandering question, and I took it as a given that deficits are not per se harmful to the economy. The discussion on the comments board included some very important issues, two of which I will discuss here: (1) Do deficits cause inflation? and (2) Do deficits decrease living standards?

The federal government can finance deficits in any combination of four ways: borrow from domestic consumers, borrow from domestic investors (meaning those who would invest in real plant and equipment, not financial investors), borrow from abroad, or create new money. The latter possibility is what distinguishes the federal government from state governments, as California recently learned again.

Some opponents of deficits assert that deficits are inflationary. (Note: Inflation means sustained increases in consumer prices. That is, a dollar buys fewer goods and services due to inflation. Whether inflation is measured by the Consumer Price Index or any other method, the story here is the same.) The argument is generally that the deficit will be financed by creating new money, which, it is assumed, will surely lead to higher prices.

This assertion is completely undermined by reality. In the 80's, we consistently ran the highest deficits since WWII, but inflation fell from double digits at the beginning of the decade to as low as 1-2% as the deficits grew -- and as we experienced "the longest peacetime expansion in postwar history." In the 2000's, deficits again reached relatively high levels, yet inflation remained muted even during a housing bubble.

More generally, there has been no apparent correlation between the path of deficits and the path of inflation. There is also no known confounding factor that would explain why an actual positive connection between inflation and deficits is not apparent to the naked eye. Deficits have generally not been financed by printing new money. (In the 80's, only about 10% of borrowing was "monetized," i.e., financed by having the Federal Reserve buy Treasury bonds with "new money.") What has been financed with new money has not led to inflation, either. At the very least, we have overwhelming evidence that we can have relatively large deficits and low inflation.

The second concern is that budget deficits cause decreases in living standards. Even if prices are not correlated with deficits, it is possible that the economy will end up poorer because of government borrowing. The usual story, so-called Crowding Out, has government use of productive inputs displacing private use of those resources. If the government borrows from domestic consumers, however, then it has not crowded out something that was going to induce growth. Therefore, even if the government's spending induces no growth at all, it's a wash.

As I have argued many times, even knowing that the government is using resources that would otherwise be used by private businesses to invest in productive capital does not prove that deficits will make the economy poorer. We also need to know whether the government's use of the resources is more growth-inducing or less growth-inducing than what the private businesses would have done with the resources. If the government borrows from domestic investors, the relative rates of return must be compared to know whether living standards have been reduced.

The story changes only slightly if the borrowing is from abroad. As I described in a blog post last Spring, the only thing that changes economically when we borrow from abroad instead of domestically is that we are able to build some of the factories that we otherwise would not have built, but we must then pay some of the profits from those factories to foreign investors. Since there is no shortage of productive investments available to the federal government -- indeed, our continued unwillingness to spend on publicly valuable investments has only increased the number of high-return investments that are available -- there is no necessary connection between higher deficit spending and lower living standards. Deficits and higher living standards can and should go hand in hand.

All of the above analysis, moreover, is true even when the economy is operating at full capacity. When, as now, we face an economy with scads of unused resources -- empty factories and office buildings, millions of unemployed workers, financial capital waiting to be invested -- the connection between higher deficits and higher living standards is direct and obvious. As President Obama is about to prove once again, the connection between lower deficits and lower living standards is also quite direct.

None of this is to say that all government spending is wise or that every increase in the deficit is guaranteed not to lower living standards. I am saying that deficits are not in any way systematically connected to bad spending decisions. Moreover, what Congress does when it decides to reduce deficits too often results in direct harm to real people. An anti-deficit culture leads to bad affirmative decisions such as spending freezes and across-the-board cuts, as well as bad passive decisions such as refusing to finance education or basic research. Conventional wisdom, as is so often the case, has it completely wrong.

Wednesday, January 27, 2010

On Friday, I'll be presenting a paper at a conference at the University of Pennsylvania (sponsored by the U Penn Journal of ConstitutionalLaw) on The Judiciary and Popular Will. The Symposium is built around (though not limited to) themes discussed in Barry Friedman's terrific new book, The Will of the People. Readers who have followed Friedman's academic work over the last decade and a half will see in the book the development of points he made in a series of articles tracing the history of the countermajoritarian difficulty (a clumsy phrase coined by Alexander Bickel to refer to the power of American courts to invalidate as unconstitutional laws passed by majoritarian bodies). But the book is not just a re-packaging of a collection of articles. It is a lucid and powerful narrative.

What's odd about Friedman's book--or what's odd about the necessity of the book--is that his core point has been known for many years: He shows how the Supreme Court is not in fact a strongly countermajoritarian body. What's distinctive about The Will of the People is Friedman's demonstration of how the criticisms of judicial review have evolved over time. It's also chock full of interesting historical analysis. I learned a great deal about matters that I thought I knew quite a bit about.

Okay, so that's my plug for the book. So what will I say at the conference? Below is the abstract of my paper (and truth be told, all I've written so far is this abstract and an Introduction, with the rest taking the form of fragmentary notes, to be polished over the next couple of months):

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the “countermajoritarian difficulty.” Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel’s worry, it raises a distinct one: Are courts that roughly follow public opinion capable of protecting minority rights against majoritarian excesses? Do American courts, in other words, have a “majoritarian difficulty?” This Essay examines that question from both an interpretive and an institutional perspective. It first asks whether there is a normatively attractive account of the practice of judicial review that takes account of the Court’s inability to act in a strongly countermajoritarian fashion. After highlighting difficulties with three of the leading approaches to constitutional interpretation-- representation-reinforcement, originalism, and living Constitutionalism--the Essay concludes that accounts of the Court as a kind of third legislative chamber fit best with its majoritarian bias. This conclusion has implications for the design of constitutional courts. The Essay tentatively argues that distinctly constitutional courts staffed by personnel that include some non-lawyers have advantages over supreme courts that include constitutional rights cases as part of more wide-ranging dockets, even as it notes that this approach is not readily adaptable to the American system of diffuse judicial review.

Tuesday, January 26, 2010

In my post yesterday, I gave Justice Thomas a hard time for taking the view that corporations are constitutionally entitled to make campaign expenditures without having to comply with a statutory duty to disclose that they are doing so. Today I want to praise Justice Thomas for his dissent from the denial of certiorari in Noriega v. Pastrana. Former Panamanian dictator Manuel Noriega, who is scheduled to be released from federal custody shortly, filed a habeas corpus petition arguing that the the U.S. would violate the Geneva Conventions if it followed through on its plans to send him to France for further trial, rather than allowing him to return to Panama.

Here's the core of Noriega's argument:

1) The provision of the Military Commissions Act (MCA) that, by its terms, appears to strip federal habeas courts of the power to grant relief under the Geneva Conventions, is actually best read as not doing so.

2) If, by contrast, the MCA does strip habeas courts of power to grant relief for violations of the Geneva Conventions, then it works an unconstitutional suspension of the privilege of the writ of habeas corpus.

3) Thus, either way, Noriega is entitled to rely on the Geneva Conventions, which prevent his transfer to France.

The district court rejected this argument at step 3, whereas the appeals court rejected 1 and 2. The Supreme Court declined to review the case, over a dissent by Justice Thomas, joined by Justice Scalia. Thomas says that questions 1 and 2 are difficult and that they are implicated in a great many pending cases involving detainees at Gitmo and elsewhere; thus, he says, the Court should have taken Noriega's case to resolve the issue, thereby saving lower courts and parties countless hours, days, weeks or even years of litigation.

If I were in the mood to be churlish, I'd say that the point of federal court litigation is not to resolve general questions but to decide concrete cases. However, even though the SCOTUS sometimes says that sort of thing, it's wrong: The point of discretionary jurisdiction in the SCOTUS is so that the Justices can decide what issues are most important to resolve. Justice Scalia has pretty consistently taken the position (with which I agree) that the Supreme Court should not try to resolve everything as narrowly as possible, precisely because of the law-clarification function that certiorari serves.

So far so good, but what I really like about Justice Thomas's dissent in Noriega is the even-handedness with which he presents the issues. I doubt that Justice Thomas thinks there is much to Noriega's claims. Indeed, even I think that points 1 and 2 are losers, and thus that point 3 is irrelevant. Here's the relevant language of the MCA:

No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.

Although the Court has previously found wiggle room in seemingly unambiguous laws to avoid having to decide Suspension issues, I don't see any here. Thus, the statutory argument (point 1) looks like a loser.

What about the Suspension claim? Habeas currently provides a remedy to persons "held in violation of the Constitution, laws, or treaties of the United States," and congressional efforts to cut back on that protection without formally suspending the privilege of the writ are, per Boumediene v. Bush, violations of the Suspension Clause. But surely the govt was right in its opp cert that this does not mean that any change in the underlying law is thus a violation of the Suspension Clause.

Here's an obvious example: Suppose that a federal statute bans solitary confinement but that Congress then repeals the statute. Jones is placed in solitary confinement. Does his confinement violate the Suspension Clause? Of course not. Had Jones been placed in solitary prior to the statute's repeal, he would have been entitled to habeas relief because he would have been in custody in violation of the "laws . . . of the United States." But the repeal of the anti-solitary law is a change in the substance of those "laws," not a scaling back of his entitlement to habeas as such.

Likewise with a treaty. If the United States were to formally abrogate its accession to the Geneva Conventions, then anyone held in violation of the Geneva Conventions would not be in custody in violation of the "treaties of the United States." And just as in our solitary example, the abrogation of the treaty would not be a suspension.

The answer would seem to be the same where we have a hybrid case--i.e., where, as in the MCA, an arguably self-executing treaty obligation is superseded by a statute. That may be an appalling thing to do (as I think it was), but again, here we have a change in the substantive law governing persons held in custody, rather than a change in the scope of the writ.

Or at least so it appears to me. I admit that there are arguments to the contrary. What I admire about Justice Thomas's Noriega dissent is that he presents the legal issues without even hinting that he thinks the underlying claim is meritless. And you can be pretty sure that if I think the claim is a loser, Justice Thomas thinks so too.

Monday, January 25, 2010

My latest FindLaw column critically examines Citizens United v. FEC. I conclude that the decision probably won't do as much damage as many of the good-government groups fear because: a) even before Citizens United, corporations had plenty of ways to influence politics; and b) the largest wealthiest corporations will usually be wary of becoming too obviously involved in politics for fear of alienating roughly half of their customers. Nonetheless, I criticize the Court pretty sharply for its overall obtuseness.

Here I want to add a brief word about Justice Clarence Thomas's remarkable separate opinion. Although the Citizens United Court split 5-4 on the constitutionality of McCain-Feingold's limitations on corporate independent expenditures, 8 Justices agreed that its disclosure and disclaimer requirements are valid. As a result, if, say, Exxon-Mobil were to start running ads opposing candidates who want to slow global warming by curbing emissions, it must inform the audience that it is behind the ad and that it hasn't coordinated with the candidate. The disclosure provision is what, I hope, will somewhat limit the willingness of corporations to become directly involved in campaigns.

Now about those 8 votes. Justice Thomas dissented, saying that he would also invalidate the disclosure and disclaimer provisions as well. Correctly noting that the Court has previously recognized a right to anonymous speech, Justice Thomas then invokes the fear of proponents of anti-same-sex marriage initiatives that they will be harassed, threatened or worse if they are denied that right. That's not entirely surprising. Justice Thomas joined the recent per curiam in Hollingsworth v. Perry, which also relied on this fear. But his separate opinion is remarkable nonetheless.

Justice Thomas appears to pre-judge Doe v. Reed, the case in which the Court recently granted cert, addressing the question whether there is a right to keep somewhat private the fact that one signed a petition (in that case as well, opposing gay rights). As I noted in my FindLaw column on the case, it's legitimately difficult. But that's all the more reason for each Justice to go into the case with something approximating an open mind.

In his own defense, Justice Thomas might have said that he had to reach the issue presented in Doe v. Reed because it was also presented in Citizens United. But that's true only if one takes the leap from anonymous speech for natural persons to anonymous speech for corporations. Yet the sort of threats and intimidation that one might legitimately think entitle natural persons to anonymity when speaking or even when spending money on speech, are quite different for a corporation. The fear that a corporation might lose customers if it is known that it supports the Democratic or Republican candidate in some election is hardly comparable to the sorts of fears that could chill speech by natural persons. Even in an extremely corporate-friendly opinion, the other four conservatives in the Citizens United understood this fact. They are lucky to have Justice Thomas on the Court to make them look almost reasonable by comparison.

Thursday, January 21, 2010

Overturning two precedents, this morning the Supreme Court invalidated the application of the Bipartisan Campaign Reform Act (aka McCain-Feingold) to corporate-funded independent expenditures. I'll have more to day about the case--Citizens United v. FEC--in my FindLaw column and an accompanying post here on Monday. (My preview of the issues back in August appears here.) For now, here is a quick observation about the constitutional rights of corporations.

Neither the majority nor the dissent directly cites Santa Clara County v. Southern Pac. RR, the 1886 case that said that corporations are persons under the Fourteenth Amendment. However, the spirit of Santa Clara County could be said to hover over the opinion. Part III(A)(1) of the opinion begins with the following statement: "The Court has recognized that First Amendment protection extends to corporations." There then follows a citation of over 20 First Amendment cases involving corporate speakers. First on the list is First National Bank of Boston v. Bellotti, which relies on Santa Clara County in footnote 15. Then-Justice Rehnquist dissented in Bellotti, arguing that because Santa Clara County simply assumed that corporations are persons under the Fourteenth Amendment, it should not be controlling in First Amendment cases.

Was Rehnquist (who is looking better and better in retrospect, gulp!) right? Many progressives have long argued that Santa Clara County was at the root of much of the mischief done by the conservative Supreme Court from the 1880s through the 1930s. There is much to that complaint; the doctrine might have made more sense if, when the asserted rights of corporations were involved, courts were required to ask whether the constitutional rights of natural persons were infringed.

Nonetheless, even if Santa Clara County is a pernicious decision in other categories of cases, it does make some sense to treat corporations as though they have free speech rights. Why? Because, as a textual matter, the First Amendment protects the "freedom of speech," rather than the freedom of any particular speaker. That is why, for example, in Lamont v. Postmaster General, the Supreme Court invalidated a restriction on the receipt through the mails of "communist political propaganda," without any inquiry into whether the particular mail in question (in the lead case, "Peking Review #12") was sent by a person or entity that had a right to communicate with Americans. The speaker as such is irrelevant.

That is not to say that the majority in Citizens United got it right. The premise of Austin v. Michigan Chamber of Commerce--overruled in Citizens United--was that corporate campaign speech poses particular dangers not posed by speech by other sorts of actors. Justice Stevens, dissenting in Citizens United, fully accepts that corporate speech is prima facie valuable. But that is only the start of the inquiry. I would end up where the dissenters end up. Indeed, the majority opinion strikes me as remarkably tone-deaf to current political reality. Here is how I put it in a joint statement with my colleague Steve Shiffrin for a Cornell University press release (speaking for ourselves rather than for the university, of course):

Today's decision in Citizens United v. FEC could pave the way for even further corporate domination of American politics. For over six decades, federal law has sought to combat the corrupting influence of accumulated wealth on our democracy by forbidding corporations from using general revenues to support or oppose particular candidates for office. In light of recent legislation such as the TARP, it would be highly disingenuous at best to argue that this prohibition has prevented well-heeled corporations from making their voices heard in the political process. Moreover, the invalidated restriction was not, as the Court claimed, a "ban" on corporate speech: federal law permits corporations to create separately funded Political Action Committees to promote or oppose candidates for office. In tone and spirit, the majority opinion in Citizens United calls to mind an earlier period of conservative judicial ascendancy, when the interests of corporations were central to the Court's constitutional vision.

The big news of the week is the special election in Massachusetts to fill the late Edward M. Kennedy's seat in the United States Senate. It would not have been big news if a Democrat had held that safe seat; but a Republican won the seat in a shocking upset. The early consensus is that independents in the commonwealth are outraged by out-of-control government and thus sent a message to Obama and the Democrats to stop doing what they are doing. Chances are good that this is nonsense, but for the purposes of the argument here, it only matters that D.C. insiders think that it is true.

One of the most prominent items on this much-discussed "government out of control" list is budget deficits. Budget deficits are proof, we are told, that Washington cannot get its house in order. Budget deficits are bad. Budget deficits harm our children and grandchildren. Budget deficits weaken our international competitiveness. Budget deficits give us dandruff and fallen arches. If our politicians will not stop the deficits, then we must get new politicians. It's pitchfork time again!

It does not matter at all that none of those indictments of deficits are true, or that budget deficits are necessary and in general better than balanced budgets. Everyone believes that deficits are bad, so they must be bad. How long has "everyone" known this? Actually, only for about 16 years. Until Bill Clinton decided to stop defending the value and importance of deficits, it was still respectable in Washington to note that fiscal responsibility is not in any way correlated to balanced budgets.

Regular readers of this blog know that this is familiar territory for me. (Among many examples, see this FindLaw column from last summer and my Dorf on Law posts discussing that column, here and here). The Democrats seem unable to stop themselves from trying to use the balanced budget mantra in their favor, even though doing so prevents them from doing what they really should be trying to do in governing the country. When they have not only failed to make the case for deficit spending but have enthusiastically castigated deficits as the root of all evil, what do they expect people to do when deficits go up?

On Wednesday, I happened to watch a post mortem on the special election on The Rachel Maddow Show. The guest was Debbie Stabenow, a liberal Democratic U.S. Senator from Michigan (a state that currently is clinging to life only because of deficit-financed federal spending). Stabenow's first talking point was that George W. Bush and Republican Congresses had run up huge deficits, so Democrats should not be blamed for this bad situation. Maddow did not challenge Stabenow's presumption that deficits are bad.

Will they never learn? Rather than finally realizing that they have helped Republicans build a faux-populist bonfire against truly responsible economic governance, Democrats go straight to blaming Republicans for this "bad" thing called budget deficits.

This is even worse than the first presidential debate in the Fall of 2008, in which John McCain announced that he would respond to the then-accelerating economic free-fall by cutting government spending. As I argued at the time, McCain's proposal would be the economic equivalent of "bleeding out the excess humors" from a human patient, as was common medical practice through the beginning of the 19th century. (Unsurprisingly, a lot of people died from blood loss.) Barack Obama merely smiled serenely and failed to challenge the premise.

Now, rather than simply agreeing silently with a crazy Republican talking point, the Democrats are reinforcing the craziness. As always, this has its short-term appeal. Trying to tell people that deficits are not per se evil -- and are, in fact, an important part of both short-term and long-term strategies for economic prosperity -- is outside of the current (and always narrow) realm of "thinkable thought" in Washington. The pundits would go crazy.

Similarly, when Bill Clinton rolled over regarding deficits in 1994, I spoke with an economist friend who frequently advised Democratic politicians. He agreed that it was unfortunate that Clinton had felt it necessary to embrace a bad idea, but he pointed out that the Democrats were still spooked by Ross Perot's surprisingly successful anti-deficit populist appeals in the 1992 election. The Democrats were simply inoculating themselves against being seen as pro-deficit.

Wednesday, January 20, 2010

Some time today, at this site, you will find my column for the week. It describes and assesses the importance of a Vermont Supreme Court case in which the plaintiffs are asking for loss-of-companionship emotional-distress damages from a defendant who shot their dog to death. I consider the claims of some within the animal protection movement that a victory for the plaintiffs would be a "gateway" victory for the status of animals.

In this post, I want to explore the meaning of a different sort of "gateway" that many proponents of animal welfare embrace: vegetarianism. Some people who oppose the slaughter and torture of animals within the food and clothing industries decide that instead of (or perhaps preliminary to) going vegan, they will go "lacto-ovo vegetarian" (which means a person who consumes plant-based food plus dairy and egg products). As a matter of numbers, there are many more lacto-ovo vegetarians than there are vegans, and most vegans (including yours truly) were once lacto-ovo vegetarians. My question here is why?

One answer is that people view vegetarianism as a compromise. In his new book, Eating Animals, for example, Jonathan Saffran Foer provides compelling accounts of individual and statistical realities that make a strong case for veganism. Yet he became a vegetarian rather than a vegan (despite saying on Ellen that if you truly care about animal cruelty, the first product you will give up consuming is eggs). When asked why he is not a vegan on a vegan blog, he responded that he is transitioning to veganism. Since he is not ready, for whatever reason, to give up all animal products, he will give up flesh for now and maybe give up dairy and eggs later.

Another answer I have heard is that what people most oppose is the killing of animals for food and clothing rather than the exploitation of animals. Therefore, since flesh necessarily comes from an animal's death, it seems logical to give up eating animal flesh as a first step.

The problem with both of these answers is that the distinction between flesh, dairy, and eggs is illusory and false. To produce milk requires a mammal to become pregnant. In the dairy industry, cows are inseminated regularly on a "rape rack" (an industry term, not mine), after which they become pregnant and give birth to baby calves. Half of the time, the calf is male, and male "dairy calves" are killed for veal (because raising them to "adulthood" is not economically worthwhile, given that their flesh is inferior to that of "beef" cows). Once "dairy" cows are "spent," moreover, they are slaughtered and turned into hamburger meat.

Analogous to the dairy industry, the egg industry breeds "food" chickens and "egg-layer" chickens. The latter, when male, are not worth the trip to the slaughterhouse to the farmer, so they are killed on the day they're hatched. Male chicks typically die of suffocation after being discarded in plastic waste-bags or buried alive, or they die of mutilation after being thrown fully conscious into a wood-chipper. The egg-laying hens often meet the same fate once they are "spent."

In other words, if one cares only about not funding slaughter, then the decision not to eat flesh but to continue eating dairy and eggs is morally no more sensible than a decision to eat only short cows but not tall cows. If one were to write a book eloquently describing the horrific treatment and slaughter of animals, it would be laughable, of course, for the book to end with a statement that the author just could not contribute to all of that death and suffering anymore and would from now on consume only the flesh of short cows. A compromise ordinarily must be at least coherent if it is to represent a meaningful step in a positive direction.

What if someone really wants to do something about animal suffering but feels unready to go vegan right away? Is there really no compromise that is better than nothing? Well, I did not say that. I said that ovo-lacto vegetarianism is no better than nothing, because it causes as much death and possibly even more suffering than omnivorism, if one is consuming the same quantity of animal products but merely switching from including flesh to increasing dairy and eggs, as many lacto-ovo vegetarians do.

What is better than nothing? Taking actual steps toward veganism by consuming fewer and fewer animal products over time. If you ordinarily eat eggs and sausage for breakfast, eat something else -- vegan pancakes or vegan French toast or oatmeal or tofu scramble -- for breakfast. With that meal, you have reduced what might be called your "torture and slaughter" footprint. With a switch from eggs and sausage to eggs and cheese, by contrast, you have done nothing whatsoever for animals.

Gateways can be useful. Reading a book about animal rights (like Gary Francione's Introduction to Animal Rights: Your Child or the Dog?) can open one's eyes to the "moral schizophrenia" that afflicts human beings who defend the consumption of animal products while claiming to oppose unnecessary animal cruelty and killing. Going vegan for a meal or two a day can represent positive steps on the road to going vegan.

But some gateways lead nowhere. They are the moral equivalent of getting lost and getting comfortable in the place where one is lost. Ovo-lacto vegetarianism is, unfortunately, a place where many people get lost. And the proliferation of "vegetarian" products that contain milk protein and eggs is a testament to how very many people who sincerely want to "do something" for animals have gotten lost in just this way.

Is my own experience a counter-example? After all, I was an ovo-lacto vegetarian, and now I am a vegan. I don't think so. I was also an omnivore for many years, but I do not view that as a "gateway" to veganism. I view my vegetarian period as a distraction, during which I could pretend -- like so many ovo-lacto vegetarians do -- that I was doing my part. I similarly do not experience my having been a lacto-ovo vegetarian as in any way facilitating my switch to veganism. When I stopped eating flesh, I started eating a lot more dairy, including especially pizza. I remained in that "lost" state for years before I finally stopped, and I found that within days of switching, I could not imagine what kept me a lacto-ovo vegetarian for so long.

Though it may sound counter-intuitive, I find that being a vegan is easier than being a lacto-ovo vegetarian was -- I do not experience "cravings" for animal products, as I in fact did experience as a lacto-ovo vegetarian (perhaps because consuming animal protein just makes you crave more animal protein). And yes, I get plenty of protein (probably much more than I need). It just doesn't come from a processing plant where people torture and stab sentient and screaming beings to death, one by one, day after day, to satisfy consumer demand.

Tuesday, January 19, 2010

Legal realism--the view that judges make decisions based on their values, ideologies, and backgrounds, rather than simply based on the formal legal materials--has become a commonplace for academics, lawyers, and judges in their unguarded moments. To be sure, it is still impermissible for a Supreme Court nominee to profess legal realism (as I elaborated here). But that is part of the kabuki dance of confirmation. Any law student who is paying even minimal attention accepts the legal realist position by about the second month of law school.

Legal realism is sometimes parodied as the view that "what the judge had for breakfast" decides the case, a double falsehood. First, the phrase falsely suggests that judicial decision making is random. Second, it suggests that formal legal materials play no role in judicial decision making. That view--that law is empty--is about as naive as formalism itself.

Nonetheless, every now and then a decision appears so nakedly political as to shake the faith of us post-realists, leaving us wondering whether a different sort of radical legal realist view is right--what I shall call "legal surrealism." A few scholars have coined this phrase before, ascribing to it a variety of meanings. I use it here to mean the view that plain old politics decides the most important cases. In recent memory, Bush v. Gore was treated by a fair number of scholars as the best evidence for legal surrealism. Now, I fear that we may have a new example: A pair of cases involving the question of whether people who oppose same-sex marriage are entitled to be shielded from public identification.

Last week, in Hollingsworth v. Perry, the Supreme Court stayed the trial judge's plan to videocast the proceedings in the case challenging California's Prop 8. (I posted a brief note on the case when the Court granted a temporary stay.) What was striking to me was not the result but the lineup: The 5 most conservative justices voted to stay the plan; the 4 most liberal dissented. That's striking because none of the questions directly involved--whether there was irreparable injury, whether there had been adequate time to comment on the district judge's plan, whether to allow cameras in the courtroom, etc.--was a right/left ideological issue. Thus, the most obvious explanation for the particular split would appear to be the justices' underlying views of the merits.

I hope I'm wrong about that, partly because if I'm right, that puts Justice Kennedy in a 5-Justice conservative majority to reject a constitutional right to same-sex marriage. But I also hope I'm wrong because of the second case that presents a version of this issue: Doe v. Reed, the case from Washington State that involves whether there is a right to sign a petition anonymously. As I explained in my FindLaw column on the case last November, there is a very good liberal argument for finding a First Amendment right to sign petitions anonymously. Now that the Supreme Court has agreed to hear the case--having granted cert last week--the legal surrealist in me fears that the genuinely important free speech questions will be distorted by the Justices' underlying views of the merits of same-sex marriage and civil unions. I am not generally a legal surrealist, but the Supreme Court sometimes makes legal surrealism tempting.

Monday, January 18, 2010

Back in the 1980s, it was still politically acceptable for some prominent Republicans to oppose an official holiday recognizing Dr. Martin Luther King, Jr. Prominent examples included Jesse Helms (well, duh), Ronald Reagan, and John McCain. Reagan eventually capitulated and McCain changed his mind in that mavericky way of his. Even at the time, it wasn't clear what angle there was for a politician in opposing the holiday, except for someone like Helms, whose appeal was unabashedly racist (in a way that Reagan's and McCain's were not). Would anything really turn on whether kids stayed home from school, and department stores held mattress sales, on one day in late January?

As it turned out, the holiday has made a difference. For one thing, MLK Day has thus far resisted commercialization. Perhaps it's simply a matter of time, but I have difficulty imagining car dealers dressing up as MLK and telling potential customers, "I have a dream that you can save a bundle if you come on down to Joe Blow's Chevrolet for our annual MLK Day Sale" in the way that they do for Presidents' Day.

The holiday has been especially important for kids. I don't know for sure, but I strongly suspect that were it not for the day off from school, elementary school children would not be taught about the civil rights movement as regularly as they are. I doubt that my daughters--ages 5 and 8--could tell you who Susan B. Anthony or Frederick Douglas was, but they know about King and the story of Rosa Parks. As a parent, this can be awkward. For example, the other night I found myself explaining how breaking the law and going to jail can be the right thing to do if the law is unjust, while at the same time trying to explain why this principle does not apply to rules of the household.

More seriously, the annual activities leading up to MLK Day put our schools in a role that it is sometimes said they fail to play: civics instructors. MLK Day is an excellent opportunity to teach lessons about the great civic value of equality. It also inoculates children against later history lessons that portray American history in triumphalist terms: Before they even have a vague sense of what happened when, they know that not that long ago, America was a land of considerable injustice.

Is there, in all of this, the risk that MLK's message will be watered down to harmless banalities and his economic program completely overlooked? Yes, of course. Is there also a risk that schoolchildren will come away thinking that racism and discrimination are things of the past? Yes to that too. Nonetheless, I think we educate more broadminded future voters by commemorating MLK than we would by ignoring him. There really was something more than a symbol at stake in the battle over whether to commemorate this day officially. Or perhaps a better way to say that is that the symbol that was at stake mattered a great deal. As Holmes said, "We live by symbols."

Friday, January 15, 2010

Here's a plug for a new book co-authored by my colleague Eduardo Penalver and Fordham law professor Sonia Katyal. The book is Property Outlaws and its core thesis is that people who violate property rights end up reshaping the law of property, and not just simply by inducing the right-holders to seek enforcement of those rights. Rather, the argument is that property outlaws change the very nature of property law, often in ways that end up being beneficial to the initial property holders in the first place and society at large. Here's the official promo:

Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.

The authors employ wide-ranging examples of the behaviors of “property outlaws”—the trespasser, squatter, pirate, or file-sharer—to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of “property outlaws” and legal innovation should be cultivated in order to maintain this avenue of legal reform.

We might expect the Penalver/Katyal thesis to hold true across all areas of legal regulation. In other words, "outlaws" in general, not just "property outlaws," should shape and improve the law: Disobedience, whether civil or not, can expose gaps between social norms and legal regulation, leading those responsible for the latter to adjust. But not invariably. For example, in most U.S. jurisdictions, there is an an unwritten rule that drivers can exceed the speed limit by 5-10 mph without expecting to be ticketed. Yet that doesn't lead to any change in the law, partly because of the Spinal Tap phenomenon. ("11 is 1 louder.") If lawmakers simply raised the speed limit by 5 or 10 mph, drivers would then take that as the new baseline. In other contexts, widespread lawbreaking signals officials to change enforcement strategies rather than the substantive law itself. E.g., during gang wars, no one proposes making murder legal.

I would also observe what we might think of as a complementary point: People who exploit loopholes in, but do not break the letter of the law, do not necessarily induce improved legal regulation. Here I have in mind campaign finance regulation and the taxation of complicated financial transactions (setting aside First Amendment limits on the former). In both areas, we see a recurring pattern: 1) Congress addresses a problem with a general rule; 2) For a short time, the regulated entities are stymied but then they figure out how to comply with the letter of the rule while still achieving the result they want (and that Congress wishes to forbid)--such as funneling money from influence seekers to politicians or avoiding taxation. (Tax law has a "substance over form" doctrine to address this phenomenon in general but very good tax lawyers can often game that too); 3) So Congress writes a new law that directly addresses the circumventing transactions, whereupon we go back to step 2). Lather, rinse, repeat.

In these cases of rule testers rather than rule breakers, regulation does not really get better over time. In fact, the whole game generates a great deal of wasted activity in the form of evasion and responses to evasion. Does this mean that evaders never lead to improvements in the law? No. There are undoubtedly situations in which it is possible to write an optimal rule but for some reason the lawmaker wrote a sub-optimal one. In these situations, an evader can highlight the law's flaw and thereby inspire change. But that strikes me as a less interesting phenomenon than the dynamic Penalver and Katyal identify.

Thursday, January 14, 2010

In my latest FindLaw column (available here this afternoon), I continue my discussion of the proposed tax on Wall Street bonuses. Going beyond the question of whether such a tax would discourage people from working on Wall Street (which I discussed here earlier this month), I run through the major arguments for and against the tax. While it is obvious that a tax on bonuses is not the first-best way to achieve progressivity in the tax code, I conclude that it is a good idea and that the arguments against it do not add up.

Here, I want to discuss a related question. Suppose that the Bush and Obama administrations had driven a harder bargain with the financial industry, by offering less than 100 cents on the dollar for losses, for example, and requiring changes in financial practices that would have given troubled mortgage holders and other debtors partial relief from their obligations. Would that be better than or worse than taxing them now?

To be simple, let's suppose that the major Wall Street firms are about to pay out $20 billion in bonuses. Let's also suppose for simplicity that there are no exclusions, so that the entire $20 billion would be subject to the tax, which we'll take to be set at a 50% rate. Bonus recipients would then receive $10 billion after taxes. Alternatively, suppose that the bailouts had included contractual obligations that resulted in a total bonus pool of $10 billion, which would not be subject to any special tax.

Which alternative is better? One of the go-to arguments among orthodox economists is that there is an extra bit of economic loss associated with any plan that redistributes resources by non-tax means. If this is true (and I strongly doubt that it is true as a general, real-world matter), then it is better to collect $10 billion in taxes and given it to people than it would be to set up legal rules to attempt to reach the same outcome. Put differently, you can (setting aside administrative costs) take $10 billion from one group and transfer it to another group, or you can take $10 billion indirectly from one group and end up transferring less than $10 billion to another group. This suggests that true believers in economic orthodoxy, if given the choice, should strongly prefer the pure tax to the change in legal rules.

Of course, this completely ignores current political realities. With taxes the dirtiest word in politics, one must do everything possible to make something look like a non-tax. Thus, the Obama administration is now floating a "financial crisis responsibility fee" to have the big financial institutions repay the money that they received in the bailouts.

What we are looking at here, however, is not merely a matter of euphemistically re-labeling a tax. Instead, we are looking at the deeper notion of ownership that people attach to their pre-tax incomes. Among the angry emails that I received after my CNN piece (discussed in my Dorf on Law post two weeks ago), one common theme was that a tax on bonuses would take away people's money. It's their property, the argument goes, and the government shouldn't take it away from them.

If we had instead simply negotiated a contract, in which financial institutions agreed to certain actions in consideration of $xxx billion in bailout money, there would be smaller (or no) bonuses to tax. Yet it would look like this was simply the result of the parties pursuing their self interest under the terms of a contract to which they had agreed.

By now, regular readers of DoL will know that this is just another variation on "the Murphy/Nagel" point, as I have come to call it. Different arrangements of legal rules lead to different outcomes (and thus different incomes for different people), and none of the array of possible legal regimes is the True Baseline. Therefore, people own what they own only because of the legal rules in play. We can change what they own by changing the legal rules, or by taxing them.

Given these political realities, it seems clear that we should reorient our legal and economic rules to redistribute through means other than taxes and transfers. If that is less efficient, let those who decry inefficiency come out clearly in favor of higher taxes.

Wednesday, January 13, 2010

My latest FindLaw column asks whether the minuscule cancer risk from backscatter X-ray full-body scans is worth worrying about. (Answer: Maybe.) In the course of the column I cite the following calculation from Super Freakonomics: Taking off and replacing shoes at the airport costs the average traveler about a minute, which aggregated over hundreds of millions of passengers wastes the equivalent of 14 lives per year. In the column I note that of course 14 lives spread out this way over hundreds of millions of people in one-minute increments is much less of a harm than actually killing 14 people.

Here I just want to note an oddity. Under the criminal law, killing a person who had a minute to live--someone in his death throes, say--is murder. Thus, if someone were to somehow kill 500 million people one minute before each of them was going to die, that would be 500 million cases of murder. So how come it feels trivial--and the Super Freakonomics calculation seems misplaced--to equate the time wasted with shoes with actual deprivations of life? The difference is not that a minute taken out of the middle of life is different from a minute taken out of the end of life. Rather, the crucial difference is between wasting people's time--even on a massive scale--and depriving people of life. This rather obvious difference suggests that there is something profoundly mistaken about a utilitarian calculus that treats moments of life simply as potentially productive units, such that wasting them is equivalent to extinguishing them.

Tuesday, January 12, 2010

Yesterday, the Supreme Court issued a temporary stay of the plans of the district court in the case challenging California's Prop 8 to make video of the proceedings available online in real time. Justice Breyer dissented but expressed satisfaction with the temporary nature of the stay--only until tomorrow, Wed, at 4 pm--so the Court can give the issue full consideration. For a backgrounder on the case, see this BLT post. Here I'll register a quick thought of my own in real time.

Let's put aside the question of a stay--which puts a special burden to show irreparable injury on the party seeking to overturn the lower court decision, here the sponsors of Prop 8. Focusing only on the underlying merits, there are two very different sorts of grounds for not making judicial proceedings available live (or delayed) over the internet, on tv, or via other means.

First, there is the general worry that in every case, the presence of cameras broadcasting to the world will change the nature of the proceedings. In seeking the stay, the sponsors of Prop 8 cited the fear of creating a "media circus," a not very precise or helpful term. You say media circus; I say freedom of the press. The worry is not that the press will behave badly and somehow disrupt the courtroom. Rather the worry is that lawyers, witnesses and perhaps even judges will ham it up or otherwise "perform" in a way that they would not in cases not going out to a worldwide viewing public.

Although Supreme Court Justices have credited these sorts of worries--especially with respect to their own proceedings--I find the claim unpersuasive. The Richmond Newspapers case finds a First Amendment right of public and press access to criminal trials, absent a compelling need to close them, and its logic would seem to apply at least as strongly to civil cases. To limit access to pre-1930s technology should require a strong justification. The "hamming" worry is hard to assess. Once cameras and thus web or tv access become routinely part of the trial process, one might expect trial participants simply to forget about them. At the very least, that's what various experiments--including in the Prop 8 case itself--aim to find out.

The second argument--for closing this particular trial to tv/internet broadcast--rests on a claim that the sponsors of Prop 8 will be subject to reprisals, intimidation, etc. But of course the substance of everything that would be viewable via the internet will be accessible to any interested members of the public even without cameras. Although I have previously expressed sympathy for the claim that signers of a petition like Prop 8 ought to be able to maintain their anonymity, sponsors are in a very different category. To borrow from the Supreme Court's First Amendment doctrine governing defamation, the sponsors have thrust themselves into public controversy. Absent specific credible threats of the sort that would justify actually closing the trial entirely, I don't see the case for keeping the cameras out.

The real worry, in the end, is probably just the opposite. So much of what happens in court--even in high-profile cases--is boring, incomprehensible to the lay public, or both. Maybe the Justices want to keep the cameras away to avoid losing the ratings contest to reruns of Law & Order.

·One who performs a morally bad action is morally worse – in terms of blameworthiness (moral culpability) – if one is aware of the wrongness of the action. Call this Maxim I.

·It is morally better – in terms of virtue – to be morally cognizant, i.e., reflective, informed, caring, inquisitive and sensitive to moral facts and dilemmas, than it is to be morally oblivious and ignorant. Under this maxim the moral value of being morally cognizant is intrinsic and not purely instrumental (cognizance of the good is more likely to lead to good actions). Call this Maxim II.

The two maxims appear to clash in the following case:

Person A is highly cognizant of the world’s evils and moral issues. She reads human rights reports, watches ‘real news,’ is informed about world famine and genocide, notices homeless people and panhandlers on the sidewalks and is generally reflective about moral issues. Person B is mostly oblivious to such matters. She is unaware of the ills of society, unconsciously avoids the news, is disposed to focus on ‘the positive’ and is not inclined to reflect on or inquire about questions of social justice and other moral issues and dilemmas. The actual actions of both A and B are of equal moral worth: neither person is especially active in terms of promoting good, avoiding doing bad, or doing what is right.

Who is morally worse, person A or person B?

According to Maxim I, person A is morally worse. Not only does she perform actions that are morally bad (or at least do little good) but she is fully aware of the moral implications of her conduct. Meanwhile, while B’s actions are no better than A’s, B does not ‘know better’ and therefore seems less reprehensible than A. Here moral cognizance serves to impute and exacerbate moral badness (in terms of blameworthiness).

In contrast, according to Maxim II it is person B who is morally worse. Unlike person A,person B lacks the virtue of moral cognizance: she is insensitive to moral issues, does not care enough about justice to even bother to inquire about the ills of the world, is unconcerned with the moral nature or effect of our actions, and is generally morally unreflective and ignorant. Here moral cognizance is a virtue that ascribes moral goodness.

This ‘clash of the maxims’ plays into many everyday dilemmas producing conflicting prescriptions as to moral cognizance. For example, for many years I avoided (at least partially unconsciously) the moral question of vegetarianism vis-à-vis the bleak reality of the meat industry. I think I understood that reflecting on, knowing and understanding these issues would either force me to give up eating meat – something I did not want to do – or would make me into a worse person for continuing to eat meat after having been exposed to the negative moral implications of my conduct. Still, I think I was morally tainted by my lack of attention to and reflection on what many seemingly moral people believed was an evil practice. The years past and finally Peter Singer – one of the world’s leading moral philosophers writing on vegetarianism – rolled into town. Somehow I felt that I could not attend his lecture and continue to avoid the whole issue of whether or not carnivorism is immoral.

As a consequence of attending the lecture I finally came face to face with the evils of the meat industry. And, I felt a better person for it. To an extent it seemed to have cleansed me of my previous moral obliviousness, making me more cognizant of the moral implications of my everyday actions. Ever since, I have been attempting (with intermittent success) a conversion to vegetarianism. Under Maxim II I am now a morally better person than I was, because I am no longer oblivious and “blissfully ignorant” and am more aware, concerned and reflective about the moral issue of meat consumption and of everyday moral dilemmas in general. In other words, my character is now more virtuous than before. In contrast, under Maxim I I am now a morally worse person than I was because I still occasionally eat meat even though I am now fully aware of the evils of my conduct. In other words, I still perform the same actions I once did, yet now I am more blameworthy and morally culpable than I was before my transformation into a more virtuous person. So, am I now a morally better or worse person than I was?

Assuming that changing oneself is difficult enough, let alone changing the world, and considering that awareness of moral reasons for actions often does not suffice for triggering action, should one who desires to be morally better aspire to more or less moral cognizance? Being less morally cognizant seems prima facie lacking in moral virtue, yet in practice it seems that moral cognizance often makes people morally worse in terms of moral culpability and blameworthiness.

Monday, January 11, 2010

Based on your excellent work at Huckabee, Palin & Romney, you have obtained summer employment at the Cuyahoga County Prosecutor’s office in Cleveland, Ohio. It is now July 2010. The U.S. Supreme Court has recently decided, in McDonald v. City of Chicago, that the Second Amendment is incorporated against the states. Meanwhile, you have been assigned to work on the case of State v. Davis.

At the highly-publicized April 2010 murder trial of U.S. citizen and Cleveland resident Drucilla Davis, the state of Ohio charged that Davis--a well-known singer/songwriter--intentionally killed her ex-boyfriend, Victor Viceroy, because Davis was jealous of Viceroy’s new relationship. Davis admitted to killing Viceroy but testified that she did so in self-defense. Viceroy, who is a former professional wrestler, came at Davis in a rage, threatening to “rip her throat out,” Davis said. Claiming she feared for her life, Davis fatally shot Viceroy through the heart with her legally owned and properly licensed handgun.

In most American states, when a criminal defendant raises a defense of self-defense, the prosecution bears the burden of disproving self-defense beyond a reasonable doubt. Ohio is different. In Ohio, the defendant bears the burden of proving self-defense by a preponderance of the evidence. This approach was held to be valid under the federal Constitution in Martin v. Ohio, 480 U.S. 228 (1987). Applying this standard, the jury deliberated for three days, and then returned a guilty verdict against Davis. After the trial, one juror who was interviewed on television, said that none of the jurors were convinced beyond a reasonable doubt that Davis was lying, but that they just couldn’t decide whether or not she was telling the truth, so they concluded that she had not met her burden of persuasion.

The Davis case sparked national outrage, with NRA Executive Vice President Wayne LaPierre describing Davis as “an American hero who should be given a parade, not put behind bars.” Congress quickly responded by passing the “Second Amendment Self Defense Restoration Act.” President Obama vetoed the bill on the ground that it was unconstitutional, but the bill became law on May 6, 2010, when his veto was overridden. The Act provides:

Section 1

This Act is passed pursuant to the powers of Congress to regulate interstate commerce, to enforce the Fourteenth Amendment (including incorporated rights such as those protected by the Second and Ninth Amendments), the spending power, the Necessary and Proper Clause, and any other powers that may be pertinent.

Section 2

In any criminal trial in a state or federal court, no person who timely raises a defense of self-defense shall be convicted of the charged offense unless the government proves the absence of self-defense beyond a reasonable doubt.

Section 3

In the event that a court finds Section 2 unconstitutional on its face or as applied, the following “Fallback A” shall operate to the extent of Section 2’s unenforceability: In any state or federal prosecution in which a defendant is accused of a crime affecting interstate commerce, no person who timely raises a defense of self-defense shall be convicted of the charged offense unless the government shall prove the absence of self-defense beyond a reasonable doubt.

Section 4

In the event that a court finds Sections 2 and 3 unconstitutional on their face or as applied, the following “Fallback B” shall operate to the extent of the unenforceability of Sections 2 and 3: In any state in which a person can be convicted of a crime without proof beyond a reasonable doubt by the government of the absence of self-defense, in a case in which the defendant timely raises a defense of self-defense, said state and all of its subdivisions shall immediately forfeit all federal funding administered by the federal Department of Justice’s Office of Justice Programs.* This forfeiture shall require any such state and its subdivisions to forfeit future funding and to return any funding already received in any fiscal year in which this provision shall operate.

Section 5

In the event that a court finds Sections 2, 3, and 4 unconstitutional on their face or as applied, the following “Fallback C” shall operate to the extent of the unenforceability of Sections 2, 3, and 4: The President of the United States shall issue a full pardon to any person convicted of any crime in any state or federal court in the United States after the enactment of this statute if that person timely raised a defense of self-defense and the prosecution was not required to prove the absence of self-defense beyond a reasonable doubt.

Section 6

As used in this statute, the “defense of self-defense” refers to the defense of self-defense as defined by the relevant jurisdiction’s substantive criminal law, but at the very least must entitle a person claiming self-defense to avoid conviction if he or she used reasonable force, including lethal force if reasonable, to prevent what he or she reasonably believed to be a threat of death or serious bodily harm to himself or herself.

Section 7

This Act shall become effective immediately upon passage and shall apply to all cases pending on or after passage.

Your supervisor was the prosecuting attorney in the Davis case, which is now on appeal in the Eighth Appellate District of the Court of Appeals of Ohio. She informs you that under Section 7, the Act clearly applies to Davis herself, but she wants your help in figuring out whether the conviction will likely be upheld and/or whether Davis will receive a pardon. Please write her an objective memorandum addressing the constitutionality of the Second Amendment Self Defense Restoration Act, on its face and as applied to Davis. Regardless of how you resolve each sub-question, be sure your memo addresses the constitutionality of Section 2 and each of the Fallback provisions.

Friday, January 08, 2010

By Mike Dorf
(Due to my confusion about dates, this post originally went up under a slightly different name, and went out in an email, on Wednesday. I took down the earlier version. If you read that one already, you needn't bother reading below, as there's nothing new here.)

(Update: Also, an earlier version of this post referred to an upcoming "break from blogging." That was another error. I originally wrote this post several weeks ago but delayed putting it up. The break from blogging is over.)

In one of my very favorite novels, David Lodge's Changing Places, the narrator tells us the following about Professor Philip Swallow:

A colleague had once declared that Philip ought to publish his examination papers. The suggestion had been intended as a sneer, but Philip had been rather taken with the idea -- seeing in it, for a few dizzy hours, a heaven-sent solution to his professional barrenness. He visualized a critical work of totally revolutionary form, a concise, comprehensive survey of English literature consisting entirely of questions, elegantly printed with acres of white paper between them, questions that would be miracles of condensation, eloquence and thoughtfulness . . . .

Question 1 (Weight: 35 percent)
You have been hired as a “December break law clerk” by the prestigious Des Moines, Iowa law firm of Huckabee, Palin & Romney. Your supervisor has just given you your first assignment.
John Sotomayor, age 54, and Sonia Roberts, age 52 are first cousins. John is a widower and Sonia has never been married. Both are lifelong U.S. citizens and residents of Iowa. John and Sonia would like to marry each other but Iowa law forbids first cousins to marry. See Iowa Code Ann. § 595.19. Growing evidence suggests that marriages between first cousins are not especially likely to result in offspring with genetic disorders. A story in the New York Times on November 25, 2009 reported:

For the most part, scientists studying the phenomenon worldwide are finding evidence that the risk of birth defects and mortality is less significant than previously thought. A widely disseminated study published in The Journal of Genetic Counseling in 2002 said that the risk of serious genetic defects like spina bifida and cystic fibrosis in the children of first cousins indeed exists but that it is rather small, 1.7 to 2.8 percentage points higher than for children of unrelated parents, who face a 3 to 4 percent risk — or about the equivalent of that in children of women giving birth in their early 40s. The study also said the risk of mortality for children of first cousins was 4.4 percentage points higher.
In any event, the marriage of John and Sonia would produce no genetic offspring at all, because Sonia had a hysterectomy in 2007.

John and Sonia would like to challenge the Iowa ban on first cousin marriage on the ground that it violates their due process and equal protection rights under the Fourteenth Amendment of the U.S. Constitution. Earlier this year, the Iowa Supreme Court found a right to same-sex marriage under the Iowa state constitution. See Varnum v. Brien, 763 N.W.2d 862 (IA 2009). Accordingly, John and Sonia have some hope that they might be able to persuade the Iowa courts to invalidate the ban on first-cousin marriage as a matter of state constitutional law. However, another law clerk has been asked to research John and Sonia’s options under the state constitution. Your task is to write an objective memorandum assessing the federal Fourteenth Amendment claims. Write the memo.

Thursday, January 07, 2010

In a recent post, I referred to my series of posts from late Summer 2007 in which I identified the worst examples then afoot of "dishonest tax rhetoric." I singled out misleading methods of describing tax increases as the "largest ever," the games one can play to make sales tax rates seem smaller, and finished with the infamous death tax/estate tax ploy. In each of those cases, I described what was going on as dishonest because the purveyors of the rhetorical ploys were building on some element of truth in each case but were deliberately communicating utterly false conclusions.

For example, if one describes a tax increase as large or small by measuring it in dollar terms, then a $100 tax increase in a $10 trillion economy is "larger" than a $10 tax increase in a $100 economy. The reason for the false comparison is to mislead the unwary into thinking that the current tax increase is somehow unprecedented, dangerous, and venal. There might be reasons to oppose any particular tax change, but such false comparisons are clearly dishonest.

Another false comparison has resurfaced recently; and although it also qualifies as dishonest in the sense that I am using the term here, it is so qualitatively disgusting that it hardly deserves to be described in the same terms as these other, more pedestrian, rhetorical shell games.

Several years ago, Harper's included a transcript of an NPR interview in which Terry Gross was discussing the estate tax with the anti-tax activist Grover Norquist. (I am recounting this from memory.) Gross pointed out that the tax at that point affected only 2% of all estates, and Norquist casually suggested that targeting a small minority of people for harsh treatment was morally equivalent to the Holocaust. Gross, obviously incredulous, pressed the issue, giving Norquist every opportunity to say that he had misspoken. Surely, Gross offered generously, you cannot possibly be suggesting that taxing large estates at average rates of roughly fifty percent is the same as killing six million people because of their religious identity. Norquist was unfazed, insisting that this was exactly what he meant to say, because in both cases a majority was targeting an unfavored minority for harm.

I had stored that shocking exchange in the back of my memory files, thinking it an especially amazing example of how provocative Norquist was willing to be. Early in 2009, I started to see some references to this analogy in the hand-written signs at the anti-Obama rallies, but I still thought that this was limited to the most extreme crazies. A few weeks ago, however, "The Daily Show with Jon Stewart" showed clips of Laura Ingraham of Fox News invoking the famous poem: "First they came ..." Her point was Norquist's point, extended from the estate tax to progressive taxation more generally. That is, she argued unambiguously that "going after" a rich minority to pay higher taxes is morally equivalent to "going after" a religious minority for extermination.

As Stewart pointed out, the phrase "they came" in the famous poem refers to taking people away and killing them, whereas the worst that can be said about progressive taxation is that "they came" to collect more taxes from a rich person than from a poor person.

Beyond that rather important difference, it is also notable that American politics is hardly an unfriendly place for wealthy people. One can buy office if one has enough money (sometimes even three times -- in a city where mayors are limited to two terms), and virtually every aspect of the U.S. legislative process is awash in money. The idea that America's rich are somehow defenseless against the whims of the unwashed masses is beyond laughable.

Even setting aside the disgusting analogy between killing people and taxing people, however, the comparison is beyond dishonest. Progressive taxes do not turn rich people into non-rich people. For example, if the estate tax returns in 2011 in the form that it existed in 2001 (which is the current default), the effective tax rate on estates would pass 50% when the taxable estate (ignoring planning opportunities) reaches about $14 million (approaching a maximum rate of 55%). This means that the heirs to a $14 million fortune would receive at least $7 million that they did not earn. If, as the House health bill proposes, we raised tax rates on high-income people by roughly 4%, then a person whose taxable income rises from $300,000 to $310,000 would have roughly four hundred fewer dollars than if the bill had never passed.

But isn't the worry that we will not stop at the $300,000/year earners? That, in fact, is the larger point: The slippery slope is reversible. If "they come" for the rich, and then "they come" for the almost-rich, and then "they come" for the merely comfortable, etc., those people will still exist and will still be able to vote. Voters in lower income categories who see "them coming" will be able to stop the process, if the benefits of higher taxes are less than the costs. No matter what, the richest will still be the richest, even after taxes.

Our political system has many flaws, but failing to listen to anti-tax sentiment among the people is not one of them. Progressive taxation is not irreversible. Analogies to genocide are appalling. They also make no sense, even on their own terms.

Wednesday, January 06, 2010

Last month, Natalie Angier wrote an article in the New York Times about new research suggesting that plants have active and sophisticated methods of resisting predators and disease. Such research is fascinating in its own right, but Angier identified an ethical lesson in it as well, namely, that choosing to be a vegan is morally no better than choosing to be an omnivore. The claim is both spurious and telling.

Here is the argument: Because plants escape predators in a sophisticated manner, it follows that they "like to live too," just as animals want to live. If plants want to live, then it follows that killing them is just as immoral as killing animals. Vegans fund the killing of plants, while omnivores (and vegetarians, I would add) fund the killing of animals. Therefore, we are all equally unethical in our consumption habits, according to Angier, and no one can claim the moral high ground.

Angier herself chooses not to eat pigs, she tells us, because she learned that pigs' teeth most resemble human teeth, but she does eat chickens, ducks, fishes, and other animal products. If her choice is arbitrary -- which she does not deny -- so, then, is the plant-eater's, she argues.

As is often the case in responding to the "gotcha" arguments of defensive omnivores, it is difficult to know where to begin. To suggest that plants want to live because they have sophisticated chemical means of survival is to attribute consciousness to plants. Only a being who has subjective experiences like plain and pleasure can want something. It is, moreover, precisely a being's subjectivity or consciousness that makes it immoral for us to cause harm to that being.

The fact that plants are well-designed to survive does not make them conscious beings -- "someone" rather than "something." Most people understand this proposition at a basic level -- if we see a person stabbing a cow and hoisting her upside down as she howls and struggles with wide eyes, we feel sympathy and sadness for her (or we would if slaughterhouses were not so well-hidden from view). We know that causing such suffering and taking away a conscious being's life is a harm to that being, even as we invent sophisticated justifications for the misery that we inflict. If we see someone picking a carrot from the ground, by contrast, we do not experience a similar sympathy and sadness.

Perhaps Angier would argue that the new plant research proves that plants truly are conscious. Otherwise, how could a plant successfully detect the eggs of a predator and produce chemicals to destroy the eggs or summon a super-predator to devour them?

The answer may be found if we consider our own immune systems. When a harmful micro-organism enters our bodies, if we are healthy, we produce a very sophisticated cascade of immune responses. We make astonishingly specific antibodies that target the invading micro-organisms and, if successful, devour the threat and prepare for fighting off similar threats in the future. When this complex process take place, if it is effective, we have no sensory awareness of it at all. We do not hear, see, smell, taste, or touch either the invader or the defender. It all goes on outside of our consciousness. If plants can assemble similarly sophisticated immune responses -- as it appears from the new research that they can -- there is no more reason to think that plants are therefore conscious than there is to think that our own immune systems' resistance to pathogens evidences or reflect our consciousness.

Let us assume, however, in spite of plants' lack of a brain or nervous system, that Angier is truly convinced now that when she eats a potato, she thereby contributes to the suffering of the potato plant. Does she conclude from this that she should therefore strive to eat fewer plants? No. Her important moral conclusion is that vegans are hypocrites, because we murder plants, even as we criticize her for murdering animals (other than pigs, whose teeth are just like ours, and other mammals).

Apart from the immaturity of such an argument, it is also wrong, even on its own terms. If we believe that plants suffer, then it is our obligation to minimize that suffering. By eating farmed animals we instead maximize it many-fold, in addition to hurting animals. Breeding animals requires that we grow plants to feed those animals. Indeed, an overwhelming majority of the grains and other plants we currently grow in the U.S. is fed to the many billions of land animals we kill every year for consumption. If we consumed the grain directly and stopped breeding animals, we would spare the lives of most of the plants now "slaughtered." (And we would engage in billions of fewer killings-per-year of sentient animals as well). Stated differently, eating animals kills many more plants than eating plants does.

I suspect that this undeniable truth about animal consumption will not move Angier to become a vegan for the plants. This is because such arguments for the dignity of plants are not generally made in good faith. Their objective is to mollify the conscience of those who articulate them and to persuade themselves and others that the killing and torment of sentient and aware beings by humans is unavoidable and therefore legitimate. A clear-eyed look at the facts, however, says otherwise.

Because I already have a post up for today (about the "slaughter" of plants and veganism), I will just take this opportunity to encourage people to read my column on FindLaw, which appears here, addressing some differences between Jewish and Catholic law on abortion and how those differences might help inform our thinking about reproductive rights.

Tuesday, January 05, 2010

With some recognizable form of the recent House and Senate health insurance bills now all but set to be passed into law by Congressional action and Presidential signing later this month, it was perhaps all but inevitable that one or two naysayers might look for some reason to hope the Supreme Court might nix the effort. But one might nevertheless have hoped for something a bit more serious that what three well known public figures have offered in this past weekend's Wall Street Journal in this vein.

In the issue in question, Orrin Hatch, Kenneth Blackwell, and Kenneth Klukowski (hereinafter 'HBK') proffer three surprisingly frivolous arguments purporting to establish that what they call 'the Health-Care Bills' are 'unconstitutional.' Since I have been writing, like Neil and Mike, with some regularity about the health insurance reform effort, I am perhaps naturally prompted to comment on each of the three arguments. Happily it requires little time.

HBK argue that '[f]irst, the Constitution does not give Congress the power to require that Americans purchase health insurance.' Really? How about the taxing power? Well, according to HBK, 'Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends.'

Now as DoL readers know, Mike has already addressed this matter quite thoroughly in a FindLaw column, so I can be very brief here. The short reply to HBK is this: On what theory is the penalty which the IRS is empowered by the legislation to assess against those who do not insure not a tax?

Here is how readily the SG can defend the mandate in any court: 'Your Honors, the legislation imposes a new tax upon those who add to the cost of health insurance by not participating in some insurance pool. The latter is a cost which the government must otherwise foot in subsidizing coverage, as it now does via the legislation, to 30 million of our erstwhile 46 million uninsured. Those who take measures to avoid imposing these costs, by participating in insurance pools, are exempted from the tax.' What, one wonders, do HBK say to this?

Next, HBK report that '[a] second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators.' The constitutional defect here, they go on, is that 'selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific...'

One wonders, upon reading this charge, what legislation would not run afoul of the Constitution by HBK's lights. Since literally all, or at the very least virtually all, legislation is arrived at through 'horse trading' and 'logrolling,' involving special favors for some legislators' constituents in return for those legislators' votes in favor of sponsoring legislators' bills, one must conclude that HBK think literally all, or at the very least virtually all, of the U.S. Code to be unconstitutional.

The third and final 'constitutional defect in this ObamaCare legislation,' HBK complain, 'is its command that states establish such things as benefit exchanges, which will require state legislation and regulations.' Citing New York v. United States and Printz v. United States -- the anti-'commandeering' decisions of the 1990s -- HBK conclude that this 'command' runs afoul of our federalism as interpreted by the Rehnquist Court.

The most dramatic problem with this argument is that its own refutation is supplied by HBK themselves, who acknowledge that the legislation provides that the Secretary of Health and Human Services is to establish exchanges where states refrain from doing so themselves. That of course means that there is no 'command' to states here at all, let alone any 'commandeering.' There is, rather, an option (a declinable one) expressly made available to the states to take for themselves the role of rendering insurance more readily available to their citizens, should they so choose, instead of simply vesting that role categorically in HHS, which HBK do not deny could legitimately be done.

What, then, are we to conclude from the puzzling exercise in constitutional argumentation that is HBK's piece in the Wall Street Journal this weekend? Well, initially it is at least somewhat tempting to draw an analogy between these attempted constitutional arguments on the one hand and some of the arguments in favor of torture's putative legality made in the Bush White House on the other.

It's also initially tempting to suggest that these arguments are not meant to be serious constitutional arguments at all. They might instead be meant simply to 'score points' by casting further clouds of suspicion, in the eyes of the constitutionally ignorant, upon the legitimacy of a presidency and of legislation to which these gents actually object on no more than partisan political grounds.

But I shall resist these temptations and attribute to HBK only the best of intentions. And that, happily, leaves us with the much more benign conclusion that HBK's only real fault is an apparent lack of even the most rudimentary understanding of the document one of them has pledged to defend and protect and all three of them have just frivolously invoked -- the anything but frivolous U.S. Constitution. Here's to a more serious veneration of our founding document by our public servants in future.